By Craig P. Alexander, Esq.

On Monday, June 30, 2014 the United State Supreme Court issued its ruling in the important case of Harris v. Quinn. While the case is limited in its ruling and scope, it is a critical one where the Court boxed in the ever expansionist reach of government employee unions.

Background:

Mrs. Pamela Harris is the mother of a severely disabled adult son who needs constant care due to his disabilities.  A federal Medicaid program funds many state run programs that provides financial assistance by paying caregivers for these individuals who reside at home rather than in a more expensive nursing care facility.  Most often it is a family member who is providing this care and who is being paid to do so under this program.  The State of Illinois has such a program and by law declared these caregivers to be state employees but without any right to benefits, not subject to any control as to their time, place or methods of provision of care services (and provides that the caregiver is solely responsible to and is an at will employee of the customer (the disabled person)) and the State is immune from any liability to the disabled customer for any home caregivers negligence or intentional conduct.

In 2003, first by executive order then legislation, the caregivers were forced to join a union, the SEIU, and pay dues, which the State withheld from their Medicaid payments.  Mrs. Harris and others challenged this forced unionization via this case.  She lost at the federal trial court and intermediate appeals court levels with those courts relying on a past U.S.S.C. court case Abood v. Detroit Bd. Of Ed. 431 U.S. 209 (1977).  The Supreme Court, noting the importance of the factual situation described above, ruled in Mrs. Harris favor.

Limited Ruling:

The Court (Justice Alito) performed a detailed analysis of the reasoning behind the Abood case, which upheld the unionization of full time government employees (there teachers) who were directly the employees of the Board of Education.   Justice Alito and the rest of the majority found that full time direct state employees are vastly different factually to what I would call akin to in-home independent contractors and limited the extent of the Abood ruling to full time direct government employees.  Further to extend the finding in Abood upholding required union membership (or agency fee paying) to this situation was a reach to far.  The Court stated:

“If we allowed Abood to be extended to those who are not full-fledged public employees, it would be hard to see just where to draw the line, and we therefore confine Abood’s reach to full-fledged state employees.”

Once the Court found the holding in Abood was not controlling in this situation, it then did an analysis of the facts of this situation under “generally applicable First Amendment standards.”  Relying on cases like Knox v. Service Employees 567 U.S. ___ , 132 S. Ct. 2277 (2012), the Court ruled that the justification of preventing “free riders” benefiting from union negotiations for its members applying to those not paying for union dues / expenses, did not apply in the context of the Harris facts (in-home workers as described above).

Once again, the Court noted several significant differences between the regular full time government employee and the in-home caregivers the Illinois statute attempted to force unionization upon.   For example, one justification cited by the unions is “labor peace” in not having conflicting unions vying for membership in the same union shop locations.  The Court noted that in-home caregivers are not in one place but always in the customers’ homes (which are often the caregivers homes’ as well).  Space does not permit me to go through all of the Court’s reasoning here.  The Court ordered that union dues and agency fees can no longer be withheld from a home caregivers’ Medicaid payments if they object.

Implications from this Ruling:

1. The Court effectively blocked forced government unionization of recipients of funds under government programs like Medicaid where the person receiving the payments is not a true “government” worker where the state agency controls the time, method and means of employment.   This is especially true where the legislature declares the “employee” is not entitled to any typical government employee benefits like pension rights.  The Court was very specific about the limited nature of the “employment” between the State of Illinois and the home caregiver.

2. The Harris decision is not banning forced union membership (or agency payments to a union by those who do not join the union) for traditional full time government workers such as public school teachers, CHP officers, firefighters, etc.   This is not a “right to work” decision for all government employees.

3. However, a close reading of the Harris majority’s analysis of the Abood decision notes the current majority’s concerns that the policy and practical implications of Abood’s approval of closed shop laws for government employees.  Thus the majority justices may be open to a challenge from a more traditional full time government employee.

4. Elections matter – the Harris decision and the Burwell v. Hobby Lobby case (both critically important First Amendment cases decided on the same day) were five to four votes that included the swing vote of Justice Kennedy.  All of the four “liberal” justices voted in the dissent to uphold the forced unionization of the home caregivers in Harris (and to deny religious expression as argued in the Hobby Lobby case).  Thus the outcomes of the elections in the fall for control of the U.S. Senate and the White House in 2016 are critical as the make up of the Court could be the deciding factor on these important issues one way or another in the near future.

To read the Court’s opinion go to: (http://www.supremecourt.gov/opinions/13pdf/11-681_j426.pdf).

Craig P. Alexander, Esq. is an attorney at law whose office is in Dana Point, CA.  Craig has been a member of the California Bar Association since December 1987 and he practices law in the areas of insurance coverage, construction defects, general business litigation and civil litigation.  Craig is a former elected member of the Orange County Republican Central Committee and a form Vice President with the California Republican Assembly.  Craig and his wife Pam enjoy long walks on the beach especially if that beach is located in Hawaii!  He can be reached at cpalexander@cox.net

By Craig P. Alexander, Esq.

Many of you reading this were supporters of Proposition 32 in 2012 which, unfortunately, lost at the polls after the public employee unions outspent our side to defeat this reform of campaign finance regarding unions and corporations taking of their member’s dues for political purposes.   One of the chief architects of the Prop. 32 initiative and campaign is our longtime friend Mark Bucher, Esq.  Not one to withdraw from the fight for fiscal sanity in California or to just accept defeat, Mark joined with others to start the California Policy Center.  One of CPC’s missions is to inform citizens of California of the dangers of unfunded pension liabilities and the huge power of government employee unions over our state and local governments.

An important effort of the CPC (http://californiapolicycenter.org/) is the Transparent California project (http://transparentcalifornia.com/) .  Want to know the compensation of a particular government employee?  Want to know what the average salary and benefits of a particular city or county or special district employees are?  California law provides that the compensation of public employees is public record and members of the public (you and I) are entitled to obtain this information.  Mark and the CPC volunteers and staff have been making public records requests to many cities, counties and special districts under the California Public Records Act Request statutes and obtaining that information.  Because the law (the California Government code and court decisions on that) is so strongly in favor of disclosure, the CPC has been having great success in obtaining this information.  And since it is public record, you can find this information at the Transpartentcalifornia.com web site.

You will be unhappily surprised to find out how, in many, many instances, you are paying “your” public employees both now and when they retire –on the taxpayers’ dime – far more than you might imagine.  From the sampling I have taken, it would appear that there are hundreds of thousands of hard working public employees who will retire with solid but not extravagant retirement salaries and benefits.  However, there are and will be many thousands of retired public employees who will be in what I and others are calling the $100,000 plus club!  And that is only their salary – that does not include health care benefits.

Let me give you some examples:  The South Coast Water District (which covers most of Dana Point and part of San Clemente and South Laguna Beach) had 84 full time employees in 2012.  The average base salary for all 84 full time employees was $79,337.05 and the average pension costs were $13,424 per employee.  The average total compensation for those same 84 employees was $118,743.10.  However, at the SCWD there are 14 employees who are in the $100,000 plus club and their averages are quite different.  The average base salary for the lucky 14 was $132,692.07 and the average pension costs for these management employees was $22,755.00.  The total average compensation was $194,740!

Over at the Orange County Fire Authority the problem is on a much larger scale.  For 2012 there were approximately 1,518 full and part time employees.  Even counting all of the part time employees, the average base salary was $69,634.26.  The average employer paid pension cost was $40,447.12 per employee.  Average per employee health care cost:  $11,351.71.  The average per employee for total compensation was $159,676.99.

But jump to the $100K club at the OCFA and you find there were 285 persons at the OCFA with base salary take home pay (before taxes) of over $100,000.00.  The average base salary for members of the 2012 $100K club was $118,564.58.  The average employer share of these 285 employee’s pensions:  $65,860.82.  The average health care costs in 2012 were $15,282.39.  And the total compensation average for these lucky $100+ club member employees was $260,447.23.

All of these compensation figures do NOT include future payout requirements for retiree costs, especially retire health care costs which, logically, should only rise as retirees grow older needing more health care.

Of course the fundamental problem with all of these defined benefit plans is you and I, the taxpayers, are on the hook for each and every penny of the retirement pay and benefits.  Rather than the public employee having either a say in how their retirement funds are invested (like an IRA or a 401k) or any risk for their good or bad investment choices, the invoice for any shortfalls (including bad investment decisions by “retirement boards”) is on us the taxpayers.

It is hoped that as more of the voting public actually are able to and do look up the particular cost per employee and overall for each public entity, the voters will be alarmed and take corrective action before it is too late.  This has already begun to happen.  In the City of Sierra Madre the City Council placed on the ballot a measure for the citizens to pay an additional tax to support increases in salaries and benefits for firefighters.  Of course the council members tried to sell this additional tax as necessary to keep good firefighters on the force.  However, local citizens, using the Transparent California web page discovered that the city paid health care costs were in excess of many of the citizens’ annual salaries!  When this “uncomfortable” and “inconvenient” fact came to light, the measure was defeated at the polls by voters who said enough is enough!

I encourage you to go to the Transparent California web site (http://transparentcalifornia.com/) and check out the site and find out what some of your publically employed friends receive in salary and benefits.   You might find the answers eye opening and prompt you to have a serious conversation with your locally elected officials – because this problem exists at the local level not just in Sacramento.

Craig P. Alexander, Esq. is an attorney at law whose office is in Dana Point, CA.  Craig has been a member of the California Bar Association since December 1987 and he practices law in the areas of insurance coverage, construction defects, general business litigation and civil litigation.  Craig is a former elected member of the Orange County Republican Central Committee and a form Vice President with the California Republican Assembly.  Craig and his wife Pam enjoy long walks on the beach especially if that beach is located in Hawaii!  He can be reached at cpalexander@cox.net

A great tragedy is now unfolding across America as we prepare for the New Year. Millions of Americans are losing their health plans; millions more are facing staggering price increases; millions more are having hours cut or seeing their salaries pared back at work because of Obamacare.

Sadly, this is just the beginning. In coming days, millions of employer-provided plans face cancellation, multiplying this disaster many fold.

The administration recently held a contest for videos to promote Obamacare. Its grand prize winner featured this message: “Don’t worry about the price tag.”

“Don’t worry about the price tag?

Isn’t that helpful and compassionate advice to the millions of Americans who are struggling through the fifth year of Obamanomics and who are now also facing the reality of seeing their premiums double or triple? Just “don’t worry about the price tag,” skip the house payment and cough up the extra cash.

Many millions of Americans who had health coverage on New Year’s Eve will not have it on New Year’s Day because of Obamacare.

What awaits those who actually can sign up?

According to the government’s own numbers, about 2/3 of the exchange applicants have been forced into Medicaid. That includes many on limited incomes who’ve maintained bare-bones policies because they’re desperately trying to stay OUT of Medicaid. Some have found that merely by looking at prices they’ve ended up trapped in this dreaded welfare program.

A major study documents that Medicaid patients have worse health outcomes than those without any insurance. If you doubt that, see how long it will take you to see a Medicaid doctor – if you can find one at all – for a bad cold.

If you are part of the one in three exchange applicants who escape this fate, the next problem will be to find a doctor – any doctor. The President of the California Medical Association reports that 70 percent of California doctors will not accept Obamacare patients.

That means the remaining 30 percent will be overwhelmed, resulting in life-threatening waiting lines. As patients desperately seek doctors in emergency rooms, actual emergencies will go waiting. Top-flight, specialized doctors and facilities will become completely inaccessible as they opt out of the system. The Cleveland Clinic, UCLA Medical Center, Sloan Kettering are just a few of the facilities that have already withdrawn from the Obamacare networks.

Those patients who actually can get an appointment may then discover that there is no record of their policy because the government hasn’t been able to connect patients with their new insurers.

Patients will next face the cold reality of sky-high deductibles and co-payments that many will be unable to pay. Many hospitals that serve large populations of the poor can only do so through supplemental payments, but Obamacare is phasing those out. Some hospitals will be forced to close their doors.

Those Obamacare patients fortunate enough to stay well in this brave new world can expect a highly elevated risk of identity theft in what the founder of MacAfee Security Software calls a “hacker’s … dream.” And there’s no need to wait for hackers, in some cases, the government has already accidentally released patients’ private financial and medical information.

Since so many people – particularly the young – are choosing not to pay inflated prices to subsidize others, we can expect another major round of rate increases next fall on those remaining in the system to make up for the shortfalls

THAT is what the new year will bring to our country. Many of us in the House warned of this coming train-wreck and tried at least to delay it. For this, we were called arsonists, terrorists, jihadists and demagogues. But now those warnings have proven entirely accurate.

This program has already devastated the lives of millions of Americans. This damage cannot now be undone by delaying it or tinkering with it – it must be repealed and replaced with the patient-centered plan proposed by House Republicans – a plan guided by individual freedom of choice and open competition.

This will only happen if there is a massive change of heart by the Congressional Democrats who imposed this nightmare on our country. Now is the time for all Americans whose lives have been upended by this folly to share their stories with their representatives and to pray that they actually can touch some hearts and change some minds during this holiday season.

Otherwise, I am afraid that New Year’s Day will be nothing to celebrate.

Reprinted from www.TomMcClintock.com

 

Attorneys with Pacific Justice Institute sent a strongly-worded letter this afternoon to school officials at Florence High School, warning them against squelching student privacy and speech rights in order to cater to the wishes of a teenage boy who has been entering girls’ bathrooms on campus.

“This is a nightmare scenario for the teenage girls—some of them freshmen—and their parents at this school,” noted PJI staff attorney Matthew McReynolds, who sent the letter to Principal Brian Schipper and Superintendent Rhonda Vendetti. “This is exactly the kind of horror story we have been warning would accompany the push for radical transgender rights in schools, and it is the type of situation that LGBT activists have been insisting would not happen.”

Parents at the school, located near Colorado Springs, became irate when they learned that a teenage boy was entering girls’ bathrooms and, according to some students, even making sexually harassing comments toward girls he was encountering. When the parents confronted school officials, they were stunned to be told the boy’s rights as a self-proclaimed transgender trumped their daughters’ privacy rights. As the controversy grew, some students were threatened by school authorities with being kicked off school athletic teams or charged with hate crimes if they continued to voice concerns. The parents became aware of PJI’s Notice of Reasonable Expectation of Privacy and contacted PJI for help.

The letter sent today by PJI explains that the non-transgender students retain significant privacy rights that are being ignored by the school. The letter also points out that Florence High has not taken minimal precautions such as requiring the student to continuously and exclusively identify with one gender. According to student witnesses, he sometimes uses girls’ bathrooms and other times uses boys’ facilities.

“We’re not going to stand by and let 99.7% of our students lose their privacy and free speech rights just because .3% of the population are gender-confused,” stated Brad Dacus, the president of Pacific Justice Institute. “LGBT activists are sacrificing the safety and sanity of our schools to push an extreme political agenda. This battle is no longer confined to California or Colorado; it is spreading to every part of the nation. It is crucial that we act now to prevent a crippling blow to our constitutional freedoms.”

PJI is demanding assurances from the school that privacy and expressive rights will be protected and any accommodations will not involve the girls giving up access to most of their restrooms, as has previously been suggested by the school.

Earlier this year, PJI led the opposition in California to AB 1266, the most sweeping legislation yet to assert transgender rights in schools. That law, which is set to take effect January 1, 2014, is currently being targeted by a citizen referendum drive. Californians who have not yet signed a petition should visit www.privacyforallstudents.com to get involved. PJI’s Notice of Reasonable Expectation of Privacy is available in both California and nationwide versions, and can be accessed at www.pji.org.